What Does the Supreme Court Think About Celebrities Being Photoshopped Naked?

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Yes, that question could come up if the high court agrees to the NCAA's petition to review its dispute with athletes over compensation.

On Friday, the National Collegiate Athletic Association asked the Supreme Court to review an antitrust case over rules prohibiting amateur athletes from licensing their names and images in TV game telecasts and videogames. Depending on how the high court moves, this has the potential of becoming a highly consequential showdown that bitterly divides Hollywood.

Why would film studios care whether or not college athletes get paid? And why might the Supreme Court — if it agrees to entertain the case — hear about actresses being photoshopped in the nude? That all depends on what questions the high court agrees to certify for review.

In August 2014, U.S. District Judge Claudia Wilken concluded that the NCAA’s compensation rules were an unlawful restraint of trade and issued an injunction barring the NCAA from prohibiting its member schools from giving student-athletes scholarships up to the full cost of attendance and up to $5,000 per year in deferred compensation. A year later, the 9th Circuit Court of Appeals ruled that the trial judge was largely correct, but said that before cash compensation packages went to athletes, the trial judge must be first examine the procompetitive effects of maintaining unpaid amateurism under the balancing scale known as the rule of reason.

The rulings amounted to a middle ground, but both the athletes and the NCAA are undertaking the risky endeavor of seeking review from the Supreme Court. Both sides have each presented two questions to the high court. Three of the questions deal with interpretation of the Sherman Antitrust Act. It's the other question being pushed by the NCAA that almost surely will bring forth amicus briefs from the MPAA, SAG-AFTRA and others in the entertainment community.

The question: Whether the First Amendment protects a speaker against a state-law right-of-publicity claim based on the realistic portrayal of a person in an expressive work (here, a student-athlete in a college-sports videogame).

The tension between free speech and right of publicity comes up a lot in lawsuits covered in this space, and it came up fairly early in the dispute between college athletes including former UCLA basketball star Ed O'Bannon and the NCAA. The collegiate athletic association is now returning to its First Amendment arguments and doing so in a fairly spectacular fashion.

According to the NCAA's petition for a writ of certiorari (read here), the suing athletes simply have no injuries and thus have no standing to pursue claims over exploitation in game broadcasts or videogames. That's because in the NCAA's view, any claim to enforce publicity rights under state law would be precluded by the First Amendment. The argument was rejected by the 9th Circuit back in 2013 in a case led by quarterback Samuel Keller against EA and the NCAA over the game NCAA Football.

In the Keller case, the 9th Circuit elected to officially adopt what's known as the "transformative use" test. It borrows from fair use principles in copyright law to examine "whether the celebrity likeness is one of the 'raw materials' from which an original work is synthesized, or whether the depiction or imitation of a celebrity is the very sum and substance of the work in question."

In other words, when using someone's celebrity, is the producer adding new meaning? If so, it's fine. If it's not — like a videogame that "realistically portrays college football players in the context of college football games" — then it doesn't get First Amendment immunity.

The NCAA (whose lawyers are currently representing the MPAA in a First Amendment battle over smoking in children's movies) doesn't think this is the proper test.

"In fact, as Keller illustrates, the test perversely punishes speech for being truthful and accurate; the more realistic a particular depiction is, the more the test ratchets up the risk of liability," states the NCAA brief. "That has matters backwards."

Talking about the potential chilling effect, the NCAA argues that "society already provides ample incentives for becoming a celebrity; the marginal additional incentive from the right to cash in on one’s publicity is minimal" and gives examples of the threat should the right of publicity be given too much control. The NCAA lists The Social Network, Ray, Capturing the Friedmans and Roger and Me as expressive works using a real person's actual name or likeness. "The very point of an artist’s work is often to represent a real subject as faithfully as possible," argues the NCAA. "Yet under the transformative-use test, achieving that artistic goal is exactly what invites liability."

The NCAA has an alternative test it would like to see adopted. It flows not from copyright law, but rather trademark law, and specifically what was adopted by some circuits after Ginger Rogers sued over the 1986 Federico Fellini pic titled Ginger and Fred. The "Rogers test," as it's now known, examines whether use of someone's mark is artistically relevant or is purposely misleading.

"So confined, right-of-publicity claims satisfy First Amendment dictates," the NCAA tells the Supreme Court. "Commercial speech that falsely claims a product endorsement is akin to the fraudulent speech that may properly be regulated. Likewise, the gratuitous use of a celebrity’s image, unrelated to any expressive content, falls beyond First Amendment protection. Hence, under the Rogers test, right-of-publicity claims raise little if any free-speech concern."

Guess who won't like the "Rogers test"? Well, that would be Hollywood's labor guilds, including the Screen Actors Guild and the Writers Guild of America.

In fact, in an amicus brief to the 9th Circuit before the Keller case was decided (see here), SAG warned of the "devastating consequences" that would befall its members if the First Amendment rendered publicity rights moot. The guild held up the "transformative use" test as a model of careful balance and took direct aim at the "Rogers test" as being fine in the trademark context (think words and symbols), but not when examining someone's persona.

"Application of the Rogers test to appropriations of an individual’s persona would take us down a slippery slope, exposing individuals to exploitation not only by manufacturer’s of products disguised by the veil of 'artistic expression' but also to purveyors of pornography or other exploitive works," argued SAG. "For example, individuals with editing software could easily transpose images of celebrities with those of unclothed models and make them available on the Internet. As technology improves and its costs decrease, this could progress beyond still photographs to motion pictures or video games. As the courts have been loath to declare any but the most obscene works unprotected under the First Amendment, it would be virtually impossible for a plaintiff to overcome the two prongs of the Rogers test, even for these uses."

So there you have it. Depending on what the Supreme Court does now, this case might not just be about pay for amateur athletes. It could also present the high court with an opportunity to draw the lines for biopics, virtual reality, photoshopped porn and, even as Back to the Future Part IIenvisioned, holograms and digital makeup.